How To Get 63% of Americans to Support Gay Marriage. (Maybe.)

Back when I used to do high school debate, there were all sorts of esoteric arguments related to the notion of positive and negative rights. The distinction, to simplify the matter greatly, is that a positive right is something that permits you to act a certain way — something granted to you — whereas a negative right is a claim to noninterference — something that precludes action from being taken against you, either by government or by other people. You’ll most commonly hear the distinction in association with libertarianism, as libertarians tend to regard positive rights as impure manifestations of government fiat power, whereas negative rights exist intrinsically outside of government, which in turn has a duty to protect them.

I never found this framing terribly satisfying as a matter of moral philosophy — there are too many things which fall somewhere in between the two poles. But as a political matter, the distinction is potentially quite interesting.

Take for example the issue of gay marriage. When gay marriage is polled, it is almost always framed as a positive right, as in: “should the government permit Adam and Steve to get married?”. I wouldn’t necessarily say I find this framing biased — since gay marriage is only permitted in six out of the 50 states and only came about in those states very recently, it is probably the more natural, plain-English way to ask the question.

But there is a different way to frame the question that is no less fair, and flips the issue on its head. Namely: “should the government be allowed to prohibitAdam and Steve from getting married?”. This is closer to the logic embodied by the court decisions in Iowa, California, Massachusetts, and other states. Those courts didn’t create gay marriage; they argued, rather, that it was already protected by their respective state constitutions.

And it turns out that if you frame a polling question in this particular way, as Gallup and USA Today did recently, you get a very different set of responses. Take a look at what happens:

When USA Today asks whether gay marriage is a private decision, or rather whether government has the right to pass laws which regulate it, 63 percent say it’s a private decision. This contrasts significantly with all other polling on gay marriage. The highest level of support gay marriage has received in the more traditional, positive-rights framing is 49 percent, from a ABC/Washington Post poll in late April. The average support is closer to about 41-42 percent. And indeed, this same survey organization, Gallup, last month released a poll that put the number of Americans approving of gay marriage at 40 percent.

So this USA Today poll is really something quite different — nearly two-thirds of Americans say that gay marriage is “strictly a private decision”. Now, it can and will be objected that USA Today’s wording is a little tricky: they don’t ask whether the government has the right to prohibit gay marriage, but rather, whether government has the right to prohibit or allowgay marriage.

But take a look at the other items that USA Today asked about. Some 97 percent of respondents say that marriage between two people of different religions is strictly a private decision. Perhaps some small fraction of that 97 percent think that the government should have nothing to do with marriage at all — there should be no state-sanctioned marriage, period. It’s fairly safe to assume, however, that the overwhelming majority of those 97 percent were interpreting the question to mean that the government ought not pass a law prohibiting marriage between two people of different religions. Marriage between two people of the same gender isn’t at 97 percent support — but it’s at 63 percent, and that’s a hell of a lot better than its done in other polls.

The better argument against my interpretation of this poll is that it’s contradicted by other evidence. Namely, last November in California, a state whose highest court had indeed ruled that gay marriage was protected by the state’s constitution, some 52 percent of the electorate decided that they knew better, and that Adam and Steve would have to catch the next available flight to Burlington, Vermont.

But even though gay marriage had already become — however briefly — the law of the land in California, that wasn’t how the debate unfolded on Proposition 8. Instead, look at what Equality California said on its website at the time:

Every Californian should have the choice to marry the person they love. It’s a personal and fundamental freedom guaranteed by the California Constitution.

Emphasis mine. True, Equality California mentioned that gay marriage had already been established under the state’s constitution. The problem is that Proposition 8 wasn’t an argument over how to interpret the state constitution — it was an argument about whether or not to amend the constitution to render interpretation unnecessary.

What if Equality California had instead said this:

California’s government should not have the right to interfere with the decision of two loving adults to get married. It’s a personal and fundamental freedom protected by the California Constitution.

You see the distinction? Equality California was still stuck in the positive rights paradigm. Gay marriage was something given to California by the state Supreme Court in its benevolent wisdom, not an intrinsic (negative) right for which the government had a duty of noninterference.

Would changing these few little words have made a difference last November? Probably not. But advocates for same-sex marriage can do a better job of framing their argument. Generally speaking, appeals to government noninterference are fairly popular; people don’t like government telling them what they do and they don’t have the right to do. Posit equal treatment under the law as the default — how dare the government make a law that abridges this right on the basis of something as trivial as sexual orientation.

Nate Silver is the founder and editor in chief of FiveThirtyEight. @natesilver538